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March 20, 1950



Raymond A. Speiser, Assistant District Attorney, John H. Maurer, District Attorney, Philadelphia, for appellant.

David Berger, McBride, Lipschitz, Woolston, Berger & Bohlen, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.

Author: Rhodes

[ 166 Pa. Super. Page 415]

RHODES, President Judge.

This is an appeal from an order of a Judge of the Court of Quarter Sessions of Philadelphia County*fn1 granting a writ of habeas corpus and discharging the relator. Under an indictment charging robbery, burglary, larceny, and receiving stolen goods relator was tried and found guilty only on the charge of receiving stolen goods. His conviction on June 24, 1948, followed a three-day trial before Judge Milner and a jury, at which relator was represented by experienced trial counsel. Immediately following his conviction, but before sentence, relator, by his counsel, filed a motion for a new trial, and he was released on bail. On November 10, 1948, his motion for a new trial was withdrawn and

[ 166 Pa. Super. Page 416]

    he was sentenced to two and one-half years in the Philadelphia County Prison. Approximately four months later, or on March 11, 1949, relator filed his petition for a writ of habeas corpus in the Court of Quarter Sessions of Philadelphia County alleging therein that his previous conviction and sentence in the same court were null and void by reason of violation of fundamental constitutional rights. His petition asserted such violation consisted of the following: (1) That he was illegally brought into the Commonwealth of Pennsylvania from a race track in the State of Maryland by detectives from the Philadelphia Bureau of Police; (2) that he was illegally detained by the police in Philadelphia for forty-four hours prior to a formal hearing before a magistrate. Although the strict rules of pleading do not apply to petitions for writs of habeas corpus, it is significant that his petition did not mention or allege that the confession, obtained from relator during the early part of the detention and used against him at the trial, was coerced. A responsive answer was filed by the District Attorney of Philadelphia County denying that relator was brought from Maryland by force, but alleging that he came voluntarily, and signed a voluntary confession admitting participation with one Hallowell in a number of crimes.

Judge Carroll, sitting in the Court of Quarter Sessions, appointed counsel for relator in the habeas corpus proceeding. Thereafter hearings were held on May 11, 1949, and May 23, 1949, and testimony taken on the issues raised by the petition and answer. On June 9, 1949, Judge Carroll filed an extensive opinion. By final order on June 10, 1949, he discharged the relator on the ground that the trial court had lost jurisdiction, relator's fundamental constitutional rights having been violated in that (1) he was illegally and in violation of extradition laws brought from the State of Maryland to Philadelphia, and (2) a confession used against him at the

[ 166 Pa. Super. Page 417]

    trial was not voluntarily given but coercively obtained by the police during the forty-four hour detention.

Under recent decisions of the United States Supreme Court, the line of demarcation is not clear between cases in which, on review of a previous criminal conviction either by habeas corpus or appeal, a prisoner's fundamental constitutional rights have been held violated and those cases in which such rights have been held not to have been violated. This may result from the fact that denial of due process, as applied to a criminal trial, must be described in general terms, that is, the failure to observe that fundamental fairness essential to the very concept of justice. Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166, 180. Obviously, the Due Process Clause is not susceptible to reduction to a mathematical formula. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Lyons v. State of Oklahoma, 322 U.S. 596, 602, 64 S.Ct. 1208, 88 L.Ed. 1481; Townsend v. Burke, 334 U.S. 736, 739, 68 S.Ct. 1252, 92 L.Ed. 1690; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686. However, there are certain fundamental principles applicable to the review on habeas corpus of criminal convictions and sentences. As Mr. Justice Douglas stated in Sunal v. Large, 332 U.S. 174, 182, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982, 1989: 'If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable.' 'In Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1, 4, we (the Supreme Court) said: '* * * that 'The writ of habeas corpus can never be used as a substitute for an appeal * * *. The regularity of proceedings is not to be attacked in this way.' * * * (and that) 'The writ of habeas corpus should be allowed only when the court or judge is satisfied that the 'party hath probable cause to be delivered'. 3 Blackstone 132 (and that) * * * 'A judgment cannot be lightly set aside by collateral

[ 166 Pa. Super. Page 418]

    attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity'. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, [146 A.L.R. 357], (and that) * * * The remedy of habeas corpus being an extraordinary one, it can be successfully invoked only in exceptional cases, where there is a 'peculiar and pressing need for it'. In Goto v. Lane, 265 U.S. 393, 401, 44 S.Ct. 525, 527, 68 L.Ed. 1070, the Supreme Court of the United States in an opinion by Justice Van Devanter said: 'The remedy is an extraordinary one, out of the usual course, and involves a collateral attack on the process or judgment constituting the basis of the detention. The instances in which it is granted, when the law had provided another remedy in regular course, are exceptional and usually confined to situations where there is peculiar and pressing need for it or where the process or judgment under which the prisoner is held is wholly void'.' Com. ex rel. Smith v. Ashe, 364 Pa. 93, 101, 71 A.2d 107, 111.

But where relator shows a conviction and judgment rendered in violation of the Fourteenth Amendment to the Constitution of the United States, such judgment is subject to collateral attack and may be set aside upon habeas corpus. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859; Townsend v. Burke, supra, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; Gibbs v. Burke, supra, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686. A relator has the ...

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